Desperate Characters

Andy King, a first-term city councilman from the Bronx, is a bow-tie enthusiast. He likes them in a range of colors (teal, purple, gold) and has a catholic taste for prints (dotted, striped, checkered). On the job, he wears everything from red slacks to bright yellow blazers to lime-green shirts paired with aqua khakis. One recent morning, the council member made a brief stop in Times Square, dressed in a purple shirt and matching purple horse-bit loafers.

King is finalizing a bill directed at a group he calls “costumed individuals.” These are the people, largely immigrants, who dress as Elmo, Cookie Monster, and Spider-Man, to name just a few, and pose with tourists for tips in Times Square. (Earlier this summer, I wrote about a nineteen-year-old Elmo named Virgilia Reyes.) Their ranks have swelled since the Bloomberg administration closed off parts of Times Square to car traffic, in 2011, leaving broad patches of fresh pedestrian space. Now, up to eighty costumed individuals mill around Times Square on any given afternoon.

As their ranks have grown, objections to their presence have, too. Women have complained that some of the characters have jostled and groped them in the mobbed streets. Local businesses grouse about characters swarming bewildered tourists. In July, a Spider-Man punched a policeman who had intervened in his attempt to get a bigger tip from a tourist. The incident punctuated mounting complaints about characters harassing, berating, and, in a few instances, assaulting picture-takers who skimped on payment. Earlier this month, the police handed out red leaflets, written in five languages, to Times Square tourists, notifying them that tipping is optional. For a week or two afterward, many characters fanned out to farther-flung street corners, to avoid the leaflets and run-ins with cops.

At one point, King heard about an Elmo who “lost his mind on a family. There is nothing in place to curtail the behavior! That’s when I said I’ve got to do something,” King told me. During the city council’s last session, he advanced a bill that would have created a mandatory license for anyone dressed up in a costume and trolling for tips. (King: “Thor cannot leave without his hammer, you cannot leave without your ID card!”) The bill languished, but he is planning to unveil a new one, in September. Given the recent spate of bad press about the characters, this bill has more than a fighting chance. Respected advocates like Tim Tompkins, the president of the Times Square Alliance, which represents local businesses, have called for similar forms of regulation. After the incident with the police officer, Mayor Bill de Blasio weighed in as well. “I think this has gone too far,” he said at a press conference. “I know some of my colleagues in the City Council are looking at legislation we could move quickly to create licensing and rules.”

It does not strike King as odd that, as a council member from the Bronx, he’s claimed a place at the center of a debate about Times Square. He parries questions about his motives with a practiced spiel about advocating for “what’s in the best interest of all New Yorkers.” When I pressed him about why he was so concerned about the characters, he spoke about his commitment to children. “My granddaughter was down here, and a Strawberry Shortcake took a picture with another girl and her dad, and when the father didn’t give her a big enough tip, she ripped her head off—her own head off!—and started cursing at the family,” he said. “So my five year-old comes back and starts saying, ‘How does someone take off their own head?’ It’s a different reality now. You just snatched away the innocence of a child.”

A bill to crack down on belligerent street hawkers might seem like a straightforward proposition, but there are some notable caveats. “This is an oddball situation,” Chris Dunn, of the New York Civil Liberties Union, told me in a phone call. The characters aren’t begging for money, nor are they providing a service for some predefined remuneration—the tips are only suggested. Yet their speech and assembly rights, which should be unfettered in a public space like Times Square, are tinged with an obvious economic incentive. Dunn voiced reservations about imposing a licensing scheme as a solution. Any regulation drawn up to govern the Times Square characters would apply citywide, and licensing processes can be cumbersome. What about the Salvation Army Santas? Dunn wondered. They wear costumes—would they all have to apply for licenses?

King seems untroubled by these policy wrinkles. “This bill is not about First Amendment rights. This has nothing to do with immigration,” he said. “This is to protect those in costume and those out of costume.” The draft bill is still rough, but it’s clear enough that, if a mask and costume cover your face and body and make you unrecognizable, you would need a city permit to appear in public,. “We don’t know who’s underneath these costumes,” King said. “Could be a pedophile, could be a wanted criminal . . . God forbid, a terrorist!”

A vast number of the costumed characters in Times Square are undocumented immigrants and, as Dunn noted, “licensing schemes are particularly problematic for people who are fearful of the government, even when their activity is entirely lawful.” King was quick to point out that it’s against the law for city authorities to use licensing as a pretext for determining immigration status. Even so, under King’s bill, “costumed individuals” would have to pay a small—as yet undetermined—fee and submit to a background check intended to root out any past criminal behavior.

I asked Ana and Xamara, both from Mexico, about this when I found them putting on their costumes one morning at the mouth of the subway station at 41st Street and Seventh Avenue. (They preferred not to give their last names.) “I don’t have papers, but I’m not scared,” Ana said. She wasn’t keen on the idea of having to apply for a license, but she did see an upside. “It would make working easier; there’d be no worries about getting in trouble all the time,” she said. She felt that she was in the clear either way because the tips were voluntary. To make the point, Xamara, who’d been texting while Ana and I spoke, pulled out the placard they were carrying with them, which read, “Tips, please.”

So far, the characters themselves have had little say in the matter, but that may soon change. On Friday, I spoke with Lucia Gomez-Jiminez, the executive director of La Fuente, a non-profit that organizes immigrant workers. “Some say the characters are not workers, but that’s wrong—they are,” she said. La Fuente held its first meeting for the characters on August 5th, and three people attended; a week later, a hundred and thirty-five turned out. They have formed a group called Association of Artists United for a Smile, which is exploring how the characters might regulate themselves. “The majority of these characters don’t want altercations with the police, but the result, for all of them, is that the police have been in their face,” she said. Many are not averse to a licensing scheme (there’s been some talk about photo I.D.s), but they would want to institute it on their own terms. On Tuesday, the Association of Artists will hold a closed-door meeting to discuss its next steps; members hope somehow to preëmpt King’s bill, which they feel is hasty and heedless, Gomez-Jiminez said.

When I met Daniel Garodnick, the city councilman whose district includes Times Square, he was dressed in a sober suit and tie, and weighed his words carefully. His district covers large swaths of midtown, as well as the East Side, from 14th Street to 97th Street. He said that he was still exploring possible solutions, and appeared engaged and thoughtful on the subject, if also a bit bemused. “We’ve got the sale of Stuyvesant Town, the east midtown rezoning, and then”—he paused, fighting back a smile—“we’ve got the Elmos.”

To hear Garodnick tell it, there are two routes forward. The first is to increase the police presence in Times Square over the next sixty days to try to tamp down on aggressive behavior (“When you have Spider-Man punching a police officer in the face, the unwritten story is that there was a policeman there, in his presence. Where these problems materialize is where there are no police officers.”) The second is to introduce a licensing scheme like King’s, which, as Garodnick notes, would complicate enforcement. “I’m not yet persuaded licensing solves all our problems,” he said. With it, “you create two problems. One is you need to enforce existing rules against a licensed and now legitimized Elmo, and you still need to enforce against unlicensed Elmos who may or may not be doing any bad acts.” While Garodnick was speaking, an Elmo sauntered by with a smaller, stuffed Elmo pinned to his costume. Garodnick momentarily lost his polish and gawked. “There’s an Elmo on top of an Elmo. Look at that. I’ve never seen that before. It’s a meta-Elmo!”

There were talented Elmo impersonators; bedraggled, half-dressed Elmos; wig-wearing Elmos; and fully suited Elmos. “When does Elmo become Elmo?” Garodnick asked. “When you start thinking it out, you can almost come up with limitless examples of the various iterations out there.” King’s license requirement would apply to virtually anyone wearing both a costume and a mask. Garodnick countered: “Blue Man Group? The ladies in front of the theatre over there?” He pointed to two half-naked women in glittery masks and tiaras. “Their faces are covered, and everything else is kind of covered,” he said.

Whatever their differences over the merits of licenses, Garodnick and King are in agreement about one ancillary perk. It would be easier to enforce trademark infringements if the legal creators of Elmo and Spider-Man formally object to the unauthorized use of their likenesses. In July, the Sesame Workshop stated that it “has not authorized the appearance of any Sesame Street costumed characters on public streets in any city.” Since then, both the Sesame Workshop and Marvel Comics, another rights holder, have been silent about their course of action. But, if the Times Square characters are forced to register to work in the area, these companies will be able to put a name to a face, as it were. “If you . . . want to assert your rights against the Spider-Man who’s dressing up without your permission, you know who it is,” Garodnick said. “You know their names and where to serve your papers.”

Jonathan Blitzer is a contributing writer to newyorker.com. He has written for the magazine since 2014, and was a finalist for a 2016 Livingston Award.